When a Non-Parent Wants Custody of a Child

When parents separate or divorce, one of the many decisions to be made is how the custody of any children of the marriage should be divided.

However, in some cases, a person who is not the child’s parent will want to obtain custody of a child; for example the child’s grandparents or other extended family members, or even a close family friend.

The potential right of such parties to obtain custody arises under the Children’s Law Reform Act, which specifically provides that the persons who are entitled to apply for a court for a Custody or Access Order is “a parent of a child or any other person”.

Not surprisingly, however, the Act also provides detailed requirements in connection with an application made by a non-parent.

First of all, any individual who wants to ask a court for a Custody Order must complete and file two particular Forms (Form 8: “Application”, and Form 35.1: “Affidavit in support of claim for custody or access”; both are available at www.ontariocourtforms.ca). These Forms are filed with the court office.

Then, he or she must also file a police Record Check, which involves the applicant completing a Consent Form for Police Record Check for Non-Parent Custody Applicants, and submitting it with a fee to his or her local a police station (although not all of them conduct police Record Checks).

The completed Record Check as returned from the police must be served on any other parties (including the biological parents), and must also be filed with the court within 10 days. A previously obtained Record Check can be submitted as long it meet certain regulatory requirements, and was completed within 60 days that the application was commenced.

Next, the non-parent applicant must also sign a form that authorizes the provincial Children’s Aid Societies to provide information about certain records that they might possess about the applicant for custody. This involves completing a CAS Report on Records Form, which can be completed at the courthouse counter. The Affidavit in support of a claim for custody or access is sworn after the CAS Report on Records form has been completed.

If the CAS report indicates that the Children’s Aid Society was involved with the non-parent applicant, then the Report is shared with the court and with other parties. (There are also specific procedures to follow for cases where the applicant does not want the Report to be shared). However, if the CAS has no records on the applicant, then the Report is kept in a sealed file and is not shared.

Finally, upon receiving an application for custody by a non-parent, the court staff will also search court records from across Ontario as part of a report indicating whether there have been any family law cases involving the non-parent applicant or the child. The judge may also ask court staff to search court records for criminal cases.

The process to be followed by a non-parent who wishes to apply for custody of a child involves certain necessary and important steps. For further information, contact Russell Alexander, Family Lawyers.

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About FamilyLLB

FamilyLLB is written by Russell Alexander, a divorce and family law lawyer based in Ontario, Canada. For nearly twenty years, Russell's firm has helped clients who are going through a separation or divorce. You can find more of Russell's online commentary via Twitter, Google+, LinkedIn, or on the firm's Facebook page.